Gary H. Luftspring

The moving parties brought motions to quash appeals from an order authorizing a court-appointed Sales Officer to enter into agreements to separate joint venture interests in real estate projects as part of a corporate wind-up.

The Court of Appeal granted the motions to quash, finding that the order was interlocutory because it was a step in implementing the wind-up and sale process, not a final determination of substantive rights.

Furthermore, the Court held that the order was made pursuant to the Business Corporations Act, meaning any appeal lies to the Divisional Court.

The moving parties brought motions for leave to appeal a decision of Conway J. dated April 4, 2025.

The Divisional Court dismissed the motions for leave to appeal and awarded costs of $10,000 to each of the responding parties, Sheldon Libfeld and Jay Libfeld.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal without costs.

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

Four brothers who equally owned a complex real estate development partnership experienced a complete breakdown in their business relationship, leading to a court-ordered wind-up and sale of the business.

Two brothers appealed the trial judge's decision to exclude a specific real estate transaction from the wind-up order, arguing breach of fiduciary duty.

The other two brothers appealed a provision in the judgment requiring them to certify compliance with the wind-up and disclosure orders.

The Court of Appeal dismissed the appeals regarding the excluded transaction, deferring to the trial judge's factual findings that it was conducted outside the partnership.

However, the Court allowed the appeal regarding the certification provision, striking it on the basis that requiring certification of vague obligations in a highly hostile environment would unfairly expose the parties to unwarranted contempt proceedings.

The insurer for an insolvent corporate defendant and a missing individual defendant brought a motion on short notice to intervene and appoint a litigation guardian.

The plaintiffs, who had been preparing to argue their motion for leave to proceed with a secondary market cause of action under the Securities Act, sought an adjournment due to the late service of the insurer's motion record.

The court adjourned the insurer's motion to allow the plaintiffs to respond, and consequently adjourned the plaintiffs' leave motion, as the outcome of the insurer's motion could significantly alter the defense.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

Orthoarm Inc. moved for summary judgment to dismiss GAC International, LLC's action, arguing GAC was estopped by conduct from claiming a reduced royalty rate.

GAC's action sought a declaration that royalties should be 5% instead of 10% after another party began selling a bracket using the same patent.

The court dismissed Orthoarm's motion, finding genuine issues of material fact, including GAC's knowledge of the patent use, Orthoarm's detrimental reliance, and the feasibility of Orthoarm licensing the patent to other manufacturers.

The court determined that a trial was required for a fair and just determination.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The Bank of Nova Scotia Trust Company, as Estate Trustee During Litigation (ETDL) of the Estate of Mary Kathleen Kuklis, applied for directions regarding the sale of real property, disposition of personal property, and production of documents from Martin Kuklis, a former attorney for property.

Following a settlement of the application, the issue of costs remained.

The court found Martin Kuklis's conduct, including his failure to pass accounts and self-interested opposition, warranted an award of substantial indemnity costs against him personally, payable first from his share of the Estate.

Karla Anne Shawn Kuklis, Shawna Ellis, and Wesley Kuklis were not held personally responsible for costs, and their request for costs was dismissed.

The ETDL was awarded full indemnity costs, with the difference between full and substantial indemnity paid from the Estate.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The defendant sought leave to appeal a motion judge's decision dismissing its motion to compel the plaintiff to answer certain questions on examination for discovery.

The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the order, as the motion judge correctly applied principles of relevance and proportionality under Rule 1.04(1.1).

The court also held that the issue of answering discovery questions did not raise a matter of general importance.

The plaintiff bank brought a motion for partial summary judgment seeking a declaration that losses it sustained due to an employee's participation in a Ponzi scheme constituted a 'direct financial loss' under its fidelity bond.

The bank had settled multiple third-party claims after victims transferred funds to the bank based on fraudulent representations by the bank's employee.

The court held that the bank received the funds subject to a constructive trust, and suffered a direct financial loss when those funds were credited to unrestricted accounts controlled by the fraudster.

The court found this narrow issue of policy interpretation appropriate for partial summary judgment and granted the declaration.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The defendants brought a motion to compel the plaintiff to produce three categories of documents in its affidavit of documents.

The plaintiff argued that it was prohibited from producing these documents by United States regulatory and privacy laws, as well as US court protective orders.

The court dismissed the motion, finding that the foreign laws and orders were entitled to comity.

The court held that the plaintiff should not be compelled to violate foreign laws and directed the defendants to seek production or consent directly from the relevant US authorities or courts, with the plaintiff's reasonable cooperation.

Following a trial decision dismissing a claim for unpaid royalties under a patent licence agreement, the successful defendant sought partial indemnity costs exceeding $637,000.

The plaintiff accepted entitlement to costs but argued the claim was excessive relative to the scope of the litigation and its own costs.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher, the court assessed factors including the complexity of the dispute, the importance of the issues, the parties’ expectations, and the reasonableness of the hours and disbursements claimed.

The court found the defendant’s claimed hours were very high compared to the nature of the four‑day trial and reduced certain disbursements.

Costs were fixed at $300,000 for fees and $90,000 for disbursements, plus HST.

The plaintiff, owner of a US patent for an orthodontic bracket, sued the defendant for breach of a Licence Agreement, alleging the defendant failed to pay royalties on new bracket products.

The court applied US patent law to construe the patent claims and determine infringement.

The court found that the accused products did not infringe the patent because they lacked a slidable locking shutter that moved entirely by sliding motion.

As the products were not covered by the patent, they were not subject to the Licence Agreement, and the plaintiff's claims for royalties and aggravated damages were dismissed.

A patent licence dispute arose concerning whether certain orthodontic brackets sold by the defendant were covered by a U.S. patent licensed to the defendant under a royalty agreement.

The plaintiff alleged the products fell within several patent claims and sought unpaid royalties and aggravated damages.

The court conducted a claim construction analysis under U.S. patent law principles and compared the patent claims with the accused products.

It held that although some claim elements were present, the products did not include the required "slidable locking shutter" operating through a sliding motion between open and closed positions.

Because a required claim element was absent, the products did not infringe the patent and were not covered by the licence agreement.

The applicant filed a Request for Order During Proceedings to amend her human rights application to add a personal respondent, an allegation of reprisal, and a claim for monetary compensation.

The corporate respondent opposed the amendments.

The Tribunal applied the Smyth test and found compelling reasons to add the personal respondent, as her alleged conduct was the central issue.

The Tribunal also permitted the addition of the reprisal allegation and the claim for monetary compensation, noting that these issues would require factual determinations at a hearing.

The request to amend was granted in its entirety.